EQUALITY and LIBERTY in the Golden Age of State Constitutional Law ppt

In rediscovering their own state constitutions and re-invigorating their sovereign independence, state courts would see fi t to countenance a variety of individual rights of equality and

EQUALITY and LIBERTY

in the Golden Age of State Constitutional Law

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EQUALITY and LIBERTY

in the Golden Age of State Constitutional Law

J E F F R E Y M S H A M A N

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Oxford University Press is a registered trademark of Oxford University Press, Inc All rights reserved No part of this publication may be reproduced, stored in a retrieval system,

or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording,

or otherwise, without the prior permission of Oxford University Press

Library of Congress Cataloging-in-Publication Data Shaman, Jeffrey M.

Equality and liberty in the golden age of state constitutional law / by Jeffrey M Shaman.

p cm.

Includes bibliographical references and index.

ISBN 978-0-19-533434-0 ((clothbound) : alk paper)

1 Civil rights—United States—States 2 Constitutional law—United States—States 3 Equality before the law—United States—States 4 Liberty I Title

(Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.)

You may order this or any other Oxford University Press publication

by visiting the Oxford University Press website at www.oup.com

The author and publisher gratefully acknowledge permission for use of the following material:

Excerpts from Jeffrey M Shaman, The Evolution of Equality in State Constitutional Law,

34 Rutgers Law Journal 1013 (2003);

Excerpts from Jeffrey M Shaman, The Right of Privacy in State Constitutional Law,

37 Rutgers Law Journal 971 (2006).

TO SUSAN, AGAIN

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contents

Preface xi

Introduction: The New Judicial Federalism xiii

Chapter One: Equality 1

The Federal Model of Equality 8

The State Conception of Equality 15

Special Privileges or Immunities 28

Equal Protection of the Laws 38

Conclusion 42

Chapter Two: Classifi cations 45

Racial Classifi cations 46

Gender Classifi cations 53

Classifi cations Based on Sexual Orientation 61

Classifi cations Based on Age 70

Chapter Four: The Right of Privacy 121

The Federal Model of Privacy 125

The State Conception of Privacy 136

The Right to Be Let Alone 138

The Millian Principle 143

The Inherent and Unalienable Cornerstone of Liberty 148 Penumbrae Redux 153

Spatial Privacy: The Home as Sanctuary 155

Constitutional Situs and Methodology 158

Conclusion 160

Chapter Five: Family Rights 163

Reproductive Freedom 163

Public Funding of Abortions 163

Abortion Rights of Minors 168

Informed Consent and Waiting Periods 171

Family Relations 174

Parental Rights 174

Adoption 176

Cohabitation as a Family 181

Chapter Six: Civil Unions and Marriage 185

Chapter Seven: The Right of Intimate Association 211

Sexual Relations Between Consenting Adults (Married or Not) 211 Gay and Lesbian Sexual Relations 215

Public Health 222

Social Morality 224

Other State Interests 225

Conclusion 226

Chapter Eight: The Right of Bodily Integrity 229

The Right to Refuse Medical Treatment and the Right to Die 229 The Right to Ingest Food, Beverages, or Other Substances 235

Chapter Nine: Backlash and Advancement 243

Table of Cases 255

Index 267

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preface

The teaching of constitutional law in American law schools focuses primarily—in fact, almost exclusively—on decisions rendered by the United States Supreme Court interpreting the Federal Constitution For teachers of constitutional law who believe that equality and liberty are quintessential to a free society, this has come to be a disheartening affair,

as the Supreme Court of the United States has become increasingly servative and antipathetic, if not hostile, to the recognition of individual rights What a pleasant surprise it was, then, when some ten or twelve years ago I began to teach state constitutional law and discovered that in

con-a number of the stcon-ates the courts hcon-ad broken free of federcon-al domincon-ance of constitutional law and actually were hospitable to the aggrandizement of equality and liberty State constitutional law, I soon learned, was where the real action was and where social justice was moving forward, not stagnating as it was in the federal realm State courts were engaged in an exciting enterprise, interpreting their own state constitutions with an evolutionary vision that held extensive promise for the future of consti-tutional law

This book is an attempt to examine the progressive conception of equality and liberty that has developed in state constitutional law through-out the nation In writing this book over the last fi ve years, I have bene-

fi ted immensely from comments and suggestions from a number of colleagues As always, Erwin Chemerinsky, an eminent constitutional scholar and good friend, provided invaluable advice Robert F Williams, the law’s foremost scholar of state constitutionalism, was also extremely helpful Stephen Siegel, Alan Tarr, and Mark Weber offered excellent sugges-tions that improved my work I am further grateful for the helpful research assistance provided by the following students: Robert Augenlicht, Mary

Butterton, John DeKoker, Virginia Fuller, Joshua Greene, and Keri McGuire In addition, I have been very fortunate to enjoy the support of Glen Weissenberger, Dean of the DePaul University College of Law, who appreciates research and scholarship and has done a great deal to encour-age it at DePaul.

Having been involved in writing this book for some time now, it will

be diffi cult to bring that writing to a close It is comforting, though, to know that I will continue to teach state constitutional law and thereby continue to be engaged in the pursuit of liberty and equality

introduction

THE NEW JUDICIAL FEDERALISM

Beginning in the 1950s, the United States Supreme Court, under the ership of Chief Justice Earl Warren, emerged as a dynamic force in the expansion of constitutional rights Through several decades, the nation’s high Court established new individual rights under various provisions in the Bill of Rights The most shining example of the Court’s commitment

lead-to protecting the rights of the individual is, of course, Brown v Board of

Education, in which the Court interpreted the Equal Protection Clause

of the Fourteenth Amendment to outlaw racial segregation in public schools.1 With that momentous decision, followed by others adhering to its principles,2 the Court rendered racial discrimination the well-deserved status of a constitutional pariah Casting a wary eye at other forms of discrimination as well, the Warren Court ushered in a new era of egali-tarianism that revitalized American constitutional law

Equality was not the only focus of the Court’s concern; other vidual rights were expanded or even created anew as the Court became ever more sanguine in its reading of the Constitution In the area of crim-inal procedure, for instance, the Court extended the rights of criminal defendants in state trials to be free from unreasonable searches or seizures,

indi-to be advised of their right indi-to remain silent, and indi-to have assistance of counsel for their defense.3 In the area of religion, the Court construed the Establishment Clause of the First Amendment to prohibit state-sponsored bible reading or prayer recitation in public schools.4 At the same time, the

1 Brown v Board of Education, 347 U.S 483 (1954).

2 See, e.g., Loving v Virginia, 388 U.S 1 (1967); Palmore v Sidoti, 466 U.S 429 (1984).

3 See Duncan v Louisiana, 391 U.S 145 (1968) and cases described therein.

4 Engel v Vitale, 370 U.S 421 (1962); Abington School District v Schempp, 374 U.S 201 (1963).

Court read the Free Exercise Clause of the First Amendment in a new way that expanded the right of individuals to observe their religious beliefs.5 The Court also interpreted the Free Speech Clause of the First Amendment in an expansive vein to protect the right to criticize the government and to belong to organizations that advocate subversive practices.6

These decisions and others of the Warren Court recognizing new individual rights or liberties were not always greeted with approval in the public arena Indeed, a number of the Court’s decisions in this period of time, particularly those regarding criminal procedure and school prayer, were highly controversial and some remain so to this day Nonetheless, it

is undeniable that for twenty-fi ve years or so the United States Supreme Court was the most active force of government—be it local, state, or federal—concerned with the protection of the constitutional rights of individuals

In the 1970s, as the composition of the Supreme Court was in tion—the Warren Court was becoming the Burger Court—a majority of the justices who were still willing to use the Equal Protection Clause in an active way relegated gender discrimination to a disfavored constitutional status and struck down a number of state and federal laws discriminat-ing on the basis of sex.7 Then, in Roe v Wade, the same justices took

transi-the extraordinary step of interpreting transi-the Due Process Clause of transi-the Fourteenth Amendment to protect a fundamental right of privacy that encompasses the right of a woman to decide to have an abortion.8

Subsequent decisions would further enlarge the right of privacy to include the right to marry and to live as a family.9 Nonetheless, the Court’s com-mitment to individual rights was steadily waning Although there were some exceptions, with each new appointment to the Court, it was becom-ing increasingly conservative and less committed to the protection of individual rights

The Burger Court remained antipathetic to racial and gender discrimination, but accepted many other forms of discrimination as

5 E.g., Sherbert v Verner, 374 U.S 398 (1963).

6E.g., New York Times Co v Sullivan, 376 U.S 254 (1964); Elfbrandt v Russell, 384 U.S

11 (1966).

7 E.g., Frontiero v Richardson, 411 U.S 677 (1973); Craig v Boren, 429 U.S 190 (1976).

8 Roe v Wade, 410 U.S 113 (1973).

9See Zablocki v Redhail, 434 U.S 374 (1978); Moore v City of East Cleveland, 431 U.S

494 (1977).

constitutionally permissible During this period the Court ruled, for example, that the Equal Protection Clause was not contravened by statu-tory classifi cations that disadvantaged the poor10 or the elderly.11 The Court also moved to curtail the recognition of fundamental rights under the Equal Protection Clause Whereas the Warren Court used the Equal Protection Clause to protect the fundamental right to vote,12 to gain access

to the justice system,13 and to migrate from one state to another,14 the Burger Court ruled that neither the right to an education,15 to housing,16

to employment,17 nor to subsistence,18 were fundamental Unmistakably, the Court was taking steps to cut short any further expansion of the reach

of the Equal Protection Clause to guard against discrimination.19 As this trend continued, the Court made it clear that the guarantee of equal pro-tection would not be extended to new areas,20 and if anything, would be retracted here and there.21

While the Burger Court re-affi rmed its decision in Roe on several

occasions, over time the dedication of the Court to the right of a woman

to choose to have an abortion seemed to be fraying around the edges In

a series of cases, the Court upheld government refusals to fund abortion, even when medically necessary to protect the health of a woman,22 and

dissenting opinions grew increasingly critical of Roe.23

As other new justices were appointed to the nation’s highest tribunal and William Rehnquist was named its Chief Justice, the Court’s view of the right of privacy fl uctuated considerably Chief Justice Rehnquist

10 James v Valtierra, 402 U.S 137 (1971).

11 Vance v Bradley, 440 U.S 93 (1979).

12See Harper v Virginia State Board of Elections, 383 U.S 663 (1966).

13See Griffi n v Illinois, 351 U.S 12 (1956).

14 See Shapiro v Thompson, 394 U.S 618 (1969).

15See San Antonio Independent School District v Rodriguez, 411 U.S 1 (1973).

16See Lindsey v Normet, 405 U.S 56 (1972).

17See Massachusetts Board of Retirement v Murgia, 427 U.S 307 (1976).

18See Dandridge v Williams, 397 U.S 471 (1970); Jefferson v Hackney, 406 U.S 535

(1972).

19See Massachusetts Board of Retirement v Murgia, 427 U.S 307 (1976).

20See Mills v Habluetzel, 456 U.S 91, 99–100 (1982).

21 See, e.g., Shaw v Reno, 509 U.S 630 (1993).

22 Harris v McRae, 448 U.S 297 (1980); Williams v Zbarez, 448 U.S 358 (1980) The laws

in both cases did allow funding of abortions when medically necessary to save the life

of a woman.

23See Akron v Akron Center for Reproductive Health, 462 U.S 416, 452–62 (1983)

(O’Connor, J., dissenting); Thornburgh v American College of Obstetricians and Gynecologists, 476 U.S 747, 786–97 (1986) (White, J., dissenting).

proved to be a vigorous advocate for overturning Roe v Wade, as did

Justice Antonin Scalia upon his appointment to the Court Although a

majority of the Court continued to support Roe, the opposing camp on

the high tribunal steadily gained ground While the Court continued to recognize that the right of privacy encompasses certain family rights, reproductive rights, and even a right of intimate association,24 the com-mitment of the Court to privacy wavered signifi cantly The Court placed defi nitive limits on family and reproductive rights and also refused to extend the right of privacy to other spheres, most notably the right to physician-assisted suicide.25 Today, there is scant agreement among the justices of the Supreme Court concerning the right of privacy As a result

of the Court’s equivocation in this area, the scope of the right of privacy under the Federal Constitution is considerably uncertain

Chief Justice Rehnquist left the Court in 2005, shortly after the ment of his colleague, Sandra Day O’Connor In quick succession, John Roberts joined the Court as its new Chief Justice and Samuel Alito was appointed to fi ll the other vacancy Their previous records revealed them both to be deeply conservative in viewpoint, and disinclined to favor any further expansion of civil rights or liberties Indeed, if they favored any movement at all in this area of the law, it would be to retract certain inci-dents of equality and privacy previously established under the Fourteenth Amendment The Roberts Court, then, can be expected to continue the trend of equivocation and diminished commitment to equality and liberty

retire-Since the early 1980s, the Supreme Court has been predisposed to curtail the recognition of new rights or liberties and to even rescind some that were previously granted While there certainly have been some nota-ble exceptions along the way, the trend of the Court clearly has been a restrictive one Nonetheless, the impact of the Warren Court in the expan-sion of rights and liberties should not be underestimated The Warren Court revolutionized constitutional law by opening new vistas of civil rights and liberties that mesmerized a generation of lawyers and judges.26

Lawyers and judges in state courts were hardly immune from this nomenon Inspired by the Warren Court and provoked by the diminished

phe-24 See Chapter Four at notes 22–92.

25See id at notes 70–72.

26Robert F Williams, Equality Guarantees in State Constitutional Law, 63 Tex L Rev 1195,

1196 (1985).

commitment of the Burger Court to equality and liberty, state judges were moved to begin a “revolution” of their own, which would come to be known as the “New Judicial Federalism.”

Stirrings of the New Judicial Federalism began in the early 1970s and intensifi ed a few years later as the Warren Court revolution started to subside.27 By that time, some state courts had not only become accus-tomed to Warren Court doctrine enhancing civil rights and liberties, they had come to appreciate it considerably So, they were displeased when the Supreme Court, with a new majority of justices, had a constitutional change of heart and began to curtail the advances of the Warren Court Given the Supreme Court’s diminished commitment to equality and privacy, it was hardly surprising when a number of states stepped into the breach to revitalize those rights State constitutions, after all, are an important source of protection for individual rights and liberties, includ-ing equality and privacy Hence, state courts began to rediscover their own state constitutions, and interpret them to afford protection of rights beyond those offered in the Federal Constitution.28 Then, in 1977, Justice William Brennan, who had been the principle theoretician of the Warren Court revolution but now found himself in a distinct minority as a sur-

viving justice on the Court, wrote an article entitled State Constitutions

and the Protection of Individual Rights29 that fanned the fl ames of ism Justice Brennan reminded the state courts that state constitutional law is independent of federal constitutional law, and that state courts

federal-no less than federal, are and ought to be the guardians of our liberties.30

He also proclaimed that:

(S)tate courts cannot rest when they have afforded their citizens the full protections of the federal Constitution State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective

27See Robert F Williams, Foreword: Looking Back at the New Judicial Federalism’s First Generation, 30 Val U L Rev xiii (1996).

28 Id.

29 William J Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90

Harv L Rev 489 (1977).

30Id at 491.

force of state law for without it, the full realization of our liberties cannot be guaranteed.31

It was a rousing call to action that many state courts heeded Indeed,

by 1988 it was being claimed that state supreme courts had interpreted their state constitutions to confer more rights than the federal constitu-tion in well over 400 cases.32 The New Judicial Federalism, it was said, had become mainstream.33 With their newfound independence, the state courts granted expansive protection under their state constitutions in a variety of areas: freedom of speech, religion, criminal procedure, privacy, due process of law, and equality

The New Judicial Federalism differs signifi cantly from the older ety of “Our Federalism.”34 The older version consisted primarily of fed-eral court sensitivity to state prerogatives The idea was that in our federal system, while federal law was supreme, the states were sovereign in their own right, and state authority was entitled a degree of respect and auton-omy The old practice of Our Federalism is effectuated through measures such as the abstention doctrines35 and the doctrine of comity and equita-ble restraint,36 by which the federal courts avoid passing on state law issues believed to be best left to the state courts It also is refl ected in the federal court’s practice of minimal scrutiny (or rationality review) used

vari-to defer vari-to state authority in certain areas thought vari-to be of particular state concern.37 The old strain of Our Federalism is still practiced in the federal

31Id.

32 David Schuman, The Right to “Equal Privileges and Immunities”: A State’s Version of

“Equal Protection,” 13 Vt L Rev 221, 221 (1988).

33Id.

34 “Our Federalism represent(s) a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and fed- eral interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.” Younger v Harris, 401 U.S 37, 44 (1971).

35See Charles Alan Wright, the Law of the Federal Courts 8–52 (5th ed 1994).

36See id at 8–49.

37 “ Our scrutiny will not be so demanding where we deal with matters fi rmly within a State’s constitutional prerogatives.” Foley v Connelie, 435 U.S 291, 296 (1978) (quoting Sugarman

v Dougall, 413 U.S 634, 648, (1973) and applying rationality review to uphold a state

law barring the employment of aliens as state troopers) See also, Ambach v Norwick,

441 U.S 68 (1979) (applying rationality review to uphold a citizenship requirement for public school teachers); Sosna v Iowa, 419 U.S 393, (1975) (noting that domestic rela-

tions has long been regarded as a virtually exclusive province of the States, id at 404, and

applying minimal scrutiny to uphold a durational residency requirement as a condition

to obtaining a divorce.).

courts, and in recent years has even been extended to additional corners

by expanding the sovereign immunity granted to states under the Eleventh Amendment of the Constitution.38 While still extant, however, the Old Federalism has been joined, if not surpassed, by a new branch of federal-ism that offers a different perspective on matters of sovereignty Whereas the old species of Our Federalism stresses federal deference to state author-ity, the New Judicial Federalism emphasizes state independence from fed-eral oversight It is as if (to mix metaphors) the Old Federalism passes the baton to the states, and the New Federalism has the states taking the ball and running with it So, the New Federalism manifests a reawakening of the idea that in our federal system of dual sovereignty, state constitutional law is autonomous of federal constitutional law Sovereign in their own right, the states are empowered to adopt their own constitutions and to interpret them as they see fi t, independent of federal constitutional law

An early and dramatic example of the New Judicial Federalism occurred in California, when the supreme court of that state decided

Serrano v Priest. 39 In 1971, the California high court issued its decision

in Serrano I, ruling that the state system of fi nancing education primarily

through local property taxes that resulted in disparate funding from one district to another violated the Equal Protection Clause of the Federal Constitution as well as the equal protection clause of the state constitu-

tion Two years later, in San Antonio Independent School District v Rodriguez,

the United States Supreme Court ruled that a similar school funding tem in Texas did not violate the Equal Protection Clause of the Federal Constitution.40 Shortly after the nation’s highest court announced its rul-

sys-ing in Rodriguez, California state offi cials petitioned the state supreme court to overturn its Serrano decision in light of Rodriguez The California

Supreme Court declined to do so, and further ruled that its previous decision had been founded on the equal protection clause of the California Constitution as well as the Equal Protection Clause of the Federal Constitution.41 The court said that while Rodriguez effectively overruled

that portion of the California court’s decision based on the Federal Equal Protection Clause, it had no effect upon that portion of the court’s

38 See Alden v Maine, 527 U.S 706 (1999); Kimel v Florida Board of Regents, 528 U.S 62

(2000); Federal Maritime Commission v South Carolina State Ports Authority, 535 U.S

743 (2002).

39 Serrano v Priest (I), 487 P.2d 1241 (Cal 1971).

40San Antonio Independent School District v Rodriguez, supra note 15.

41 Serrano v Priest (II), 557 P.2d 929 (Cal 1976).

decision based on the California equal protection clause, to which the court still adhered.

Serrano II is an early illustration of how the New Judicial Federalism

operates to expand state constitutional rights beyond equivalent federal constitutional rights Along the way, it offers a ringing endorsement of the New Judicial Federalism:

In the area of fundamental civil liberties (protected by) the California Declaration of Rights we sit as a court of last resort, subject only to the qualifi cation that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter In such constitutional adjudication, our fi rst refer-ent is California law and the full panoply of rights Californians have come to expect as their due Accordingly, decisions of the United States Supreme Court defi ning fundamental rights are persuasive authority to be afforded respectful consideration, but are to be fol-lowed by California courts only when they provide no less protec-tion than is guaranteed by California law

On the other hand, the older version of Our Federalism played a role

in the United States Supreme Court’s decision in Rodriguez In that case,

among other reasons for refusing to employ anything more than the most minimal judicial scrutiny, the Supreme Court professed a reluctance to intrude upon state prerogatives The court said that equal protection claims raise implications about the federal-state relationship and that questions of federalism are present in the process of deciding whether to accord the traditional presumption of constitutionality to state legisla-tion or to apply rigorous judicial scrutiny While federalism concerns are always present in a case asking a federal court to strike down state legisla-tion, “it would be diffi cult to imagine a case having a greater potential impact on our federal system than (this one), in which (the Supreme Court is) urged to abrogate systems of fi nancing public education pres-ently in existence in virtually every state.”42 In other words, for the

Supreme Court to fi nd an equal protection violation in Rodriguez would

have a signifi cant impact upon the education systems in every state of the union The Court’s concerns about federalism in this case led it to back away from any sort of critical oversight of state educational systems

42San Antonio Independent School District v Rodriguez, supra note 15, at 44.

A majority of the Court thought that anything other than extremely deferential review would be too much federal intermeddling with state prerogatives Hence, federalism concerns contributed to the Court’s deci-sion to use minimal scrutiny to review and uphold the state education

fi nancing scheme in question

In sharp contrast, in state court when a state educational fi nancing system is challenged under a state constitutional provision, there are no federalism concerns Not only is the state court free from federal doctrine about the meaning of federal constitutional provisions, the state court further is free from concerns about overstepping the prerogatives of some other sovereign A state court might have concerns about separation of powers so it might decide to defer to the state legislature about a particu-lar matter, but those are concerns about the allocation of authority among the various branches of state government and are not concerns about

federalism As the California Supreme Court explained in Serrano II,

while the constraints of federalism are necessary to the proper ing of the federal courts, they simply are not applicable to a state court in determining whether its own state system of fi nancing education runs afoul of the state constitution.43

function-With the New Judicial Federalism, constitutional law becomes a multi-sided dialogue between one state and another and another, as well

as the federal side Any number of voices, state and federal, may join the dialogue Constitutional rights, then, need not be shaped by pronounce-ments on high from the United States Supreme Court or by isolated state court decisions With each voice that joins the dialogue, it becomes more vibrant and responsive to the concerns of an evolving society

Within the dialogue, however, each state may function as a separate constitutional laboratory, deciding for itself what rights and liberties are important for its citizens While trends involving a number of states cer-tainly may develop, if one state sees fi t to go it alone on a particular issue,

it is entitled to do so Unique state traditions or values may lead one or another state to elevate a certain right to preferred constitutional status, even though no other state does the same.44 Indeed, this may be consid-ered a sign of a well-functioning federal system, wherein each state is sovereign in its own right At other times, a pioneering state decision may

43Serrano v Priest (II), supra note 41, at 950–52.

44 The phrase “unique state traditions” is from Robert F Williams, State Constitutional Law

Cases and Materials (4th ed 2006) 184.

lead other states or even the Supreme Court to follow suit, as occurred when the Supreme Court of Kentucky ruled that a state statute making sodomy a crime was unconstitutional, setting an example that a number

of other states were quick to follow, eventually leading the supreme court

to overrule its previous decision to the contrary.45

It is important to note that it is somewhat misleading to speak of the new federalism as an exclusively judicial phenomenon In some states the expansion of constitutional independence has been instigated in no small part by the enactment of state constitutional amendments, expressly cre-ating new individual rights that have no counterpart in the Federal Constitution In the 1970s, while the Equal Rights Amendment (ERA) prohibiting the denial or abridgement of rights on account of sex failed

to gain passage as an amendment to the Federal Constitution, no less than fi fteen states were pleased to adopt the ERA as part of their state constitutions.46 Similarly, while the Federal Constitution makes no men-tion of a right of privacy, in modern times fi ve states have chosen to amend their constitutions to expressly protect the right of privacy These constitutional amendments and others protecting individual rights, enacted, as they are, by the citizens of a state, manifest the voice of the people and thereby stand as strong directives to state courts charged with the responsibility of enforcing constitutional mandates

Eventually the New Judicial Federalism would fi nd its strongest impact

in the protection of the most basic of individual rights: equality and erty In rediscovering their own state constitutions and re-invigorating their sovereign independence, state courts would see fi t to countenance a variety of individual rights of equality and liberty beyond those recog-nized by the United States Supreme Court under the Federal Constitution Equality and liberty, then, would become the centerpiece of the Golden Age of State Constitutional Law

lib-45 Commonwealth v Wasson, 842 S.W.2d 487, 500–501 (Ky 1992).

46See Chapter Two at note 61.

Equality is a principle that enjoys a long history in state constitutional law Some of the earliest state constitutions, which are the oldest political documents in America, proclaimed: “All men are born equally free and independent, and have certain inherent and indefeasible rights.”1 Today, that sentiment can still be found in a number of state constitutions, but

is more likely to be expressed as: “All people are created equal and are entitled to equal rights and opportunity under the law.”2 A number of the early state constitutions also contained provisions prohibiting the grant-ing of unequal privileges or immunities.3 These provisions, too, along with their close counterparts banning special entitlements, can be found

in many state constitutions today.4 After the Civil War and the enactment

in the Federal Constitution of the Fourteenth Amendment guaranteeing equal protection of the laws to all persons,5 some states were moved to follow suit by adding equal protection clauses to their constitutions when the opportunity arose.6 The civil rights movement of the 1950s and 60s

1 Pa Const., art I, §1 (1776) See also Va Const Bill of Rights, §1 (1776) (“All men are by

nature equally free and independent ”).

2 Wis Const art I, §1 (1982).

3 See, e.g., Va Const Bill of Rights, §4 (1776) (“That no man, or set of men, is entitled to

exclusive or separate emoluments or privileges from the community ”).

4 See, e.g., Ore Const art I, §20 (1999) (“No law shall be passed granting to any citizen or

class of citizens privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”); Ill Const art IV, §22 (1870) (“In all cases where a general law can be made applicable, no special law shall be enacted.”).

5 “(N)or shall any state deny to any person within its jurisdiction the equal protection of the laws.” U.S Const amend XIV, §1.

6 Fifteen state constitutions contain provisions guaranteeing equal protection of the laws

See infra, note 263.

chapter ONE

EQUALITY

inspired some states to add provisions to their constitutions prohibiting discrimination against persons in the exercise of their civil rights.7 And after the Equal Rights Amendment (ERA) prohibiting discrimination on the basis of sex failed to gain passage at the federal level, some states adopted their own versions of the ERA.8 It is worthy of note that long before the conception of the ERA, both Utah9 and Wyoming10 enacted state constitutional provisions guaranteeing equal civil, political, and religious rights and privileges for “male and female citizens.”11

Furthermore, in a number of state constitutions there are provisions that grant specialized protection for various kinds of equality For instance, a few state constitutions provide for “free and equal elections.”12

There are provisions in three state constitutions that expressly bar gation.13 The Alaska constitution states that “No exclusive right or special privilege of fi shery shall be created or authorized in the natural waters of the State.”14 Some state constitutions expressly prohibit certain forms of

7 See Robert F Williams, Equality Guarantees in State Constitutional Law, 63 Tex L Rev

1195, 1200 (1985) For example, Pennsylvania’s constitution states: “Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.” Pa Const art I, §23 (1967) The Michigan constitution provides: “(N)or shall any person be denied the enjoyment of his civil or political rights or be discrimi- nated against in the exercise thereof because of religion, race, color or national origin.” Mich Const art I, §2 (1963).

8 Some of these state constitutional provisions apply only to sex, while others include other forms of discrimination For example, the Texas constitution states: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.”

9 “The rights of citizens of the State of Utah to vote and hold offi ce shall not be denied or abridged on account of sex Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.” Utah Const art IV, §1 (1896).

10 “The rights of citizens of the State of Wyoming to vote and hold offi ce shall not be denied or abridged on account of sex Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.” Wyo Const art 1, §3 (1890).

11 It should also be noted that article I, §8 of the California Constitution of 1879 provided that: “A person may not be disqualifi ed from entering or pursing a business, profession, vocation or employment because of sex, race, creed, color, or national or ethnic origin.”

12 E.g., Del Const art 1, §3 (1897); Wyo Const art I, §27.

13 Conn Const art I, §20 (1965); Haw Const art I, §9 (1978); N.J Const art I, §5 (1947).

14 Alaska Const art VIII, §15 (1972) The complete provisions states: “No exclusive right

or special privilege of fi shery shall be created or authorized in the natural waters of the State This section does not restrict the power of the State to limit entry into any fi shery for purposes of resource conservation, to prevent economic distress among fi shermen and those dependent upon them for a livelihood and to promote the effi cient develop- ment of aquaculture in the State.”

discrimination in the private sector as well as the public one.15 Other state constitutions contain so-called “uniformity clauses” that call for taxes to

be uniformly levied within the same class of subjects.16

It is important to mention that a number of state constitutions tain a combination of equality provisions.17 In some cases, the combina-tion of provisions included in a state constitution amounts to a comprehensive mandate for equal treatment under the law.18 Perhaps the Connecticut constitution contains the most comprehensive protection of equality by declaring that:

con-All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community … No person shall be denied the equal protection of the law nor be subjected to segregation or dis-crimination in the exercise or enjoyment of his or her civil or political

15 E.g., Cal Const art I, §8 (1879) (“A person may not be disqualifi ed from entering or

pursuing a business, profession, vocation or employment because of sex, race, creed, color, or national or ethnic origin.”); Il Const art I, §17 (1970) (“All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ances- try and sex in the hiring and promotion practices of any employer or in the sale or rental of property.”); Mont Const art II, §4 (1973) (“Neither the state nor any person,

fi rm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condi- tion, or political or religious ideas.”).

16 E.g., “All taxes shall be uniform upon the same class of subjects with the territorial limits

of the authority levying the tax.” Del Const article VIII, §1.

17 See Randal S Jeffrey, Equal Protection in State Courts: The New Economic Equality Rights,

17 Law & Ineq 239, 252, n 65 (1999).

18 E.g., “All persons are free by nature and are equal in their inherent and inalienable

rights Equality of rights under the law shall not be denied or abridged by the State on account of sex No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoy- ment of the person’s civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.” Haw Const art I, §§2, 3, 5.

“No person shall be denied the equal protection of the laws No law shall discriminate against a person because of race or religious ideas, beliefs, or affi liations No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affi liations Slavery and invol- untary servitude are prohibited, except in the latter case as punishment for crime.” La Const art I, §3.

“We hold it to be self-evident that all persons are created equal No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimina- tion by the State because of race, color, religion, or national origin No person or set or persons is entitled to exclusive or separate emoluments or privileges from the commu- nity but in consideration of public services.” N.C Const art I, §§1, 19, 32.

rights because of religion, race, color, ancestry, national origin, sex

or physical or mental disability.19

At the opposite end of the spectrum, there are some state tions that contain no language expressly addressing equality or that only briefl y refer to it.20 Nevertheless, other language in those constitutions may be interpreted to encompass a guarantee of equality.21 The Maryland Court of Appeals, for example, has ruled that although the Maryland Declaration of Rights does not contain an express equal protection clause, the concept of equal protection is embodied in the due process article

constitu-of the Declaration constitu-of Rights.22 Similarly, the West Virginia Supreme Court

of Appeals has held that although the phrase “equal protection” is not found in the state constitution, the principle of equality is an integral part of the state’s constitutional law, inherent in the due process clause

of the West Virginia Bill of Rights.23 And the Minnesota Supreme Court has recognized that the law of the land provision in the Minnesota Bill

of Rights24 embraces principles of equality synonymous to the Equal

19 Conn Const art I, §§1, 20 (1974).

20 Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and

embodies a guarantee of equal protection that applies to the federal government Id.

22 State Administrative Board of Election Laws v Supervisors of Elections of Baltimore City, 679 A.2d 96, 100, n 6 (Md 1996) The due process article, art 24 of the Maryland Constitution states: “That no man ought to be taken or imprisoned or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty or property but by the judgment of his peers, or by the Law

of the land.”

23 Israel v West Virginia Secondary Schools Activities Commission, 338 S.E.2d 480, 486–

87 (W Va 1989) Article III, §10 of the West Virginia Constitution states: “No person shall be deprived of life, liberty, or property, without due process of law, and the judg- ment of his peers.” The West Virginia constitution also contains a clause proscribing special legislation, W Va Const art VI, §39, and at one point the West Virginia Court

of Appeals took the position that the principle of equal protection was part of that

clause State ex rel Longanacre v Crabtree, 350 S.E.2d 760 (W Va 1986) Subsequently,

the court decided that the concept of equal protection was better located in the due process clause of the state constitution, and squarely held that equal protection was inherent in the state due process clause Israel v West Virginia Secondary Schools Activities Commission, 338 S.E.2d at 487.

24 “No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment

Protection Clause of the Fourteenth Amendment to the Federal Constitution.25

The state constitutions, then, are a rich source of protection for equality.26 Sadly, however, for a long period of time state equality guaran-tees lay relatively dormant, ignored by state courts or enervated by them

of their potential vitality The state courts, it seemed, had little inclination

to interpret the equality provisions of their own constitutions in a ful way This would change one day, but not until the United States Supreme Court showed the way

force-Beginning in the 1950s, the United States Supreme Court emerged as

a dynamic force in the expansion of constitutional rights, including the rights of equality Under the leadership of Chief Justice Earl Warren, the nation’s high Court embarked on a constitutional revolution that cele-brated equality as its centerpiece The most shining example of the Court’s

commitment to equality is, of course, Brown v Board of Education, in

which the Court interpreted the Equal Protection Clause of the Fourteenth Amendment to outlaw racial segregation in public schools.27 With that momentous decision, followed by others adhering to its principles, the Court rendered racial discrimination the well-deserved status of a consti-tutional pariah.28 Casting a wary eye at other forms of discrimination

as well, the Warren Court ushered in a new era of egalitarianism that revitalized American constitutional law

of his peers There shall be neither slavery nor involuntary servitude in the state wise than as punishment for a crime of which the party has been convicted.” Minn Const art I, §2.

other-25 State v Russell, 477 N.W.2d 886, 889 n 3 (Minn 1991).

26 The courts in forty-eight states have ruled that their constitutions contain some sort of

provision guaranteeing equality Randal S Jeffrey, supra note 17, at 251 Only in

Delaware and Mississippi have the courts failed to fi nd that their constitutions contain

a provision guaranteeing equality Id at 251 n 57 In those two states, of course, the

federal equal protection clause must be applied by the state courts as well as the federal courts Moreover, the Mississippi constitution does contain a due process clause and the Delaware constitution does contain a law of the land clause These clauses could be interpreted to encompass an equality component, as was done in Maryland, West

Virginia, and Minnesota See supra, at notes 21–23 In Delaware, the state supreme court

once was asked to decide if the law of the land provision in the state constitution encompassed an equal protection component, but the court found it unnecessary to rule on that question since the case could be decided on the basis of the federal equal protection clause Hughes v State, 653 A.2d 241 (Del 1994).

27 Brown v Board of Education, 347 U.S 483 (1954).

28 See, e.g., Anderson v Martin, 375 U.S 399 (1964); Loving v Virginia, 388 U.S 1

(1967).

In the 1970s, as the composition of the Supreme Court was in tion, a majority of the justices still willing to use the Equal Protection Clause in an active way relegated sexual discrimination to a disfavored status and struck down a number of state and federal laws discriminating

transi-on the basis of sex.29 At the same time, however, a newly emerging ity was moving toward cutting short any further expansion of the Equal Protection Clause As the transition continued and a new Chief Justice, Warren Burger, was appointed, it became apparent that the Court’s com-mitment to equality was steadily waning While the Burger Court remained antipathetic to racial and gender discrimination, it accepted many other forms of discrimination as constitutionally permissible During this period the Court ruled, for example, that the Equal Protection Clause was not contravened by statutory classifi cations that disadvan-taged the poor30 or the elderly.31 The Court also moved to curtail the rec-ognition of fundamental rights under the Equal Protection Clause Whereas the Warren Court used the Equal Protection Clause to protect the fundamental right to vote,32 to obtain access to the justice system,33

major-and to migrate from one state to another,34 the Burger Court ruled that neither the right to an education,35 to housing,36 to employment,37 nor to subsistence,38 were fundamental Unmistakably, the Court was taking steps to cut short any further expansion of the reach of the Equal Protection Clause to guard against discrimination.39 As this trend contin-ued, the Court made it clear that the guarantee of equal protection would not be extended to new areas40 and if anything, would be retracted here and there.41

29 See Stanton v Stanton, 421 U.S 7 (1975); Craig v Boren 429 U.S 190 (1976); Orr v Orr,

440 U.S 268 (1979).

30 See Dandridge v Williams, 397 U.S 471 (1970); Ortwein v Schwab, 410 U.S 656 (1973);

San Antonio Independent School District v Rodriguez, 411 U.S 1 (1973).

31 See Massachusetts Board of Retirement v Murgia, 427 U.S 307 (1976); Vance v Bradley,

440 U.S 93 (1979).

32 See Harper v Virginia State Board of Elections, 383 U.S 663 (1966).

33 See Griffi n v Illinois, 351 U.S 12 (1956).

34 See Shapiro v Thompson, 394 U.S 618 (1969).

35 See San Antonio Independent School District v Rodriguez, 411 U.S 1 (1973).

36 See Lindsey v Normet, 405 U.S 56 (1972).

37 See Massachusetts Board of Retirement v Murgia, 427 U.S 307 (1976).

38 See Dandridge v Williams, 397 U.S 471 (1970); Jefferson v Hackney, 406 U.S 535 (1972).

39 See Massachusetts Board of Retirement v Murgia, 427 U.S 307 (1976).

40 See United States v Kras, 409 U.S 434 (1973); Ross v Moffi t, 417 U.S 600 (1974).

41 See, Washington v Davis, 426 U.S 229 (1976); Ambach v Norwick, 441 U.S 68 (1979);

Personnel Administrator of Massachusetts v Feeney, 442 U.S 256 (1979).

The impact of the Warren Court revolution was extensive Federal constitutional law in many areas, particularly the area of equality, came to enjoy a preponderant infl uence on state constitutional law, and all but subsumed it As an eminent constitutional scholar observed, the federal equal protection doctrine developed by the Warren Court “mesmerized a generation of lawyers and judges.”42 In interpreting their own equality provisions, state courts obediently followed the federal framework for putting the Equal Protection Clause into effect While this at fi rst had an expansive effect of protecting equality in the states, it also meant that state equality guarantees were given no wider a scope than the Federal Equal Protection Clause Precious few state constitutional rights of equal-ity were recognized beyond those already protected by the Federal Equal Protection Clause In fact, during this period of time many state courts were antipathetic to equality They had no choice but to acknowledge those rights established by the Supreme Court under the Federal Equal Protection Clause, but otherwise were unwilling to use state constitu-tional provisions to go any further than required by the Federal Constitution to enhance equality Even state provisions barring special entitlements that pre-dated the Federal Equal Protection Clause were often equated to the Equal Protection Clause and shackled to its federal framework That state provisions barring special entitlements were worded differently than the Equal Protection Clause and had a very dif-ferent history than the Equal Protection Clause were for the most part unmoving to state courts As the state courts saw it, federal constitutional law was the model to follow and state constitutional law offered no pro-tection for equality beyond the federal model Indeed, many states equated their equality provisions—whether they were prohibitions of unequal privileges or immunities, proscriptions of special legislation, or guaran-tees of equal protection—to the Federal Equal Protection Clause These states submissively followed federal equal protection doctrine in lockstep; they conformed to federal equal protection analysis and recognized no rights of equality beyond those required by the Federal Equal Protection Clause Thus, state equality guarantees were “federalized” and given no meaning of their own independent of federal constitutional law.

This situation, however, changed dramatically with the fl owering of the New Judicial Federalism, a movement that saw state courts exercising

42 Robert F Williams, supra note 7, at 1196.

their sovereign independence to break free of the federal model of equality.43 Beginning in the early 1970s, state courts began to focus their attention on the equality provisions in their own state constitutions At the same time, they became increasingly willing to eschew or even reject federal constitutional doctrine in favor of developing their own state-based doctrinal analysis of equality As the New Judicial Federalism gained momentum, more and more state courts exercised their sovereign pre-rogative to be free of federal doctrine in interpreting the equality provi-sions in their state constitutions As a result, a number of state courts embraced new rights of equality beyond those that the Supreme Court was willing to countenance under the Federal Equal Protection Clause.44

No longer antipathetic to claims for equal justice, state courts began

to develop their own conceptions of equality that differed signifi cantly from the federal model It is true that some states resisted the new order and continued to march in lockstep with federal rulings, refusing to rec-ognize any rights of equality beyond those mandated by federal law On the other hand, a growing number of states, opting for constitutional independence, broke free of the federal mold The states were rediscover-ing the equality provisions in their own constitutions and taking them in new directions beyond the federal terrain

The Federal Model of Equality

Before rediscovering their constitutional independence, the state courts adhered to the federal model of equality In the federal system, an elabo-rate structure had evolved to effectuate the Equal Protection Clause Developed over the years by the United States Supreme Court in cases involving a variety of constitutional provisions, but most prominently the Equal Protection Clause, this structure now consists of three distinct levels or tiers of judicial review, referred to as strict, intermediate, and minimal scrutiny.45 When fi rst devised, this structure consisted of only two tiers—strict and minimal—but after some years a third tier, interme-diate, was added The levels of scrutiny amount to different methods and

43 The New Judicial Federalism is discussed more fully in the Introduction.

44 Robert F Williams, supra note 7, at 1216–17.

45 For a detailed description and analysis of the federal model of equal protection and the

levels of scrutiny, see Jeffrey M Shaman, Constitutional Interpretation: Illusion and

Reality ch 3 (2001).

standards that the Supreme Court uses to evaluate the constitutionality

of government action The differences between strict, intermediate, and minimal scrutiny are not merely rhetorical; they are real differences that have decisive consequences In fact, the practice of judicial review varies considerably under each level of scrutiny, and the results of cases often are determined by the operative level of scrutiny.46

Under minimal scrutiny, which sometimes is called “rationality review,” there is a presumption in favor of legislation, and the Court will not strike it down unless the party challenging it can prove that it is com-pletely irrational—that is, that it bears no rational relationship to any legitimate state interest at all.47 Under minimal scrutiny, the ends of leg-islation need be nothing more than valid, and there need be no more than

a rational relationship between the ends of legislation and the means chosen to accomplish them Thus, when this low level of scrutiny is employed, both the ends and means will be subject to a minimal criterion

of reasonableness or rationality

In practice in the federal system, there are two varieties of minimal scrutiny.48 One variety, which obtains in the vast majority of cases, oper-ates as virtually no scrutiny at all While the Court professes to require a modicum of rationality in legislation, in reality the Court blindly accepts the legislative judgment under review with no genuine examination This sort of minimal scrutiny functions as a rubber stamp for legislation, by providing a pretense of rationality The other variety of minimal scrutiny, which is rarely, though occasionally evoked, invests rationality review with a bit of “bite.”49 In other words, it is true to its name; judicial scru-tiny is minimal, but not nonexistent Under this variety of minimal scru-tiny, legislation must be supported by something more than a mere pretense of rationality

Minimal scrutiny resides at one extreme of the federal approach, while strict scrutiny resides at the other extreme With strict scrutiny, leg-islation will be struck down unless the government can prove that the legislation is precisely tailored to achieve a compelling state interest.50 In other words, there is a presumption against the legislation that can only

be overcome by showing an extremely strong justifi cation—a compelling

state interest—to support it, as well as the closest possible fi t between legislative means and ends.

Minimal scrutiny operates by granting deference to the legislature, but under strict scrutiny such deference is inappropriate either because legislative action is tainted by a suspicious property or because it impinges upon the exercise of a basic right of constitutional magnitude So, if legis-lation contains an invidious suspect classifi cation, such as race, or affects

a fundamental right, such as the right to vote, strict scrutiny will be used.Strict scrutiny is not the only tier of heightened judicial review; an intermediate tier also exists.51 As its name indicates, intermediate scrutiny

is somewhere between strict and minimal scrutiny While strict scrutiny starts off with a fi nger on one side of the scale and minimal scrutiny starts off with a fi nger on the other side of the scale, intermediate scrutiny sup-posedly starts off with an equal balance While strict scrutiny asks if there

is a compelling state interest and minimal scrutiny asks only if there is a valid state interest, intermediate scrutiny asks for something in between—

an important or substantial state interest While strict scrutiny asks if the legislative means are absolutely necessary to accomplish their ends and minimal scrutiny asks only if the means are reasonably related to the ends, intermediate scrutiny requires a close, though not perfect, fi t between means and ends Intermediate scrutiny, which is used to evaluate

“quasi-suspect classifi cations” such as gender, seems to offer more fl bility than strict or minimal scrutiny; it suggests a meaningful form of judicial review, less predisposed to one side or the other of a constitu-tional issue

exi-Race is the prototypical suspect classifi cation, and as such it

exempli-fi es the essential characteristics of a suspect classiexempli-fi cation A classiexempli-fi cation may be considered suspect when it is directed at a “discrete and insular minority”52 that has been subject to a “history of purposeful unequal treatment.”53 Suspect classifi cations often operate to stigmatize people with a “badge of inferiority.”54 Frequently, they are the result of prejudice and are based upon group stereotypes that are not truly indicative of an individual’s abilities.55 Suspect classifi cations may focus on an immutable trait that is an accident of birth for which an individual should bear no

51 See id.

52 United States v Carolene Products Co., 304 U.S 144, 152–53, n 4 (1938).

53 San Antonio Independent School District v Rodriguez, 411 U.S 1, 28 (1973).

54 See Brown v Board of Education, supra note 27, at 494.

55 See Palmore v Sidoti, 466 U.S 429, 432 (1984).

responsibility.56 They tend to be irrational and irrelevant to any proper governmental purpose.57 Given their history of abuse, their irrelevance to any bona fi de purpose, and their prejudicial and discriminatory nature, certain classifi cations are suspicious and therefore are subject to the most exacting scrutiny to determine their constitutionality The Supreme Court also has ruled that classifi cations based on national origin or alien-age are suspect, and, like those based on race, are therefore subject to strict scrutiny.58

In the 1970s, the Supreme Court began to see that classifi cations based on gender bear many of the invidious characteristics of a suspect classifi cation.59 Nonetheless, a majority of the Court was unwilling to declare that gender was a suspect classifi cation, in all probability because

at that time some of the newer members of the Court were wary of expanding the scope of strict scrutiny.60 Finally, the Court resolved to place gender classifi cations in an intermediate tier of scrutiny In effect, the Court decided to treat gender as a “semi-suspect” classifi cation to be reviewed under a heightened, though not strict, standard of scrutiny

A few years later, the Court decided to take the same tack with classifi tions of non-marital children, ruling that while such classifi cations were not suspect enough to warrant the most exacting scrutiny, they certainly were irrational enough to call for more than minimal review.61 Thus, classifi cations of non-marital children also were considered semi-suspect and hence subject to intermediate scrutiny

ca-That, however, marked the end of heightened review, whether strict

or intermediate, of classifi cations.62 Henceforth, the Court would mantly refuse to recognize any new suspect or semi-suspect classifi cations Classifi cations based on race, national origin, or alienage were suspect; classifi cations based on gender or against non-marital children were semi-suspect; and there the list ended This brought to an end the possible

ada-56 See Fullilove v Klutznick, 448 U.S 448, 496 (1980) (Powell, J., concurring).

57 See Bolling v Sharpe, 347 U.S 497, 500 (1954); Harper v Virginia State Board of

Elections, 383 U.S 663, 668 (1966).

58 See Hirabayashi v United States, 320 U.S 81 (1943); Korematsu v United States, 323

U.S 214 (1944); Oyoma v California, 332 U.S 633 (1948); Graham v Richardson, 403 U.S 365 (1971); Sugarman v Dougall, 413 U.S 634 (1973); Nyquist v Mauclet, 432 U.S

1 (1977).

59 See Reed v Reed, 404 U.S 71 (1971).

60 Id.

61 See Mathews v Lucas, 427 U.S 495 (1976); Trimble v Gordon, 430 U.S 762 (1977);

Lalli v Lalli, 439 U.S 259 (1978).

62 See Mills v Habluetzel, 456 U.S 91, 99–100 (1982).

expansion of protection provided by the Equal Protection Clause that previous decisions had suggested.

Thus, after initially acknowledging the suspect attributes of classifi cations based on wealth,63 the Court changed its mind and cast wealth classifi cations into the lowest confi nes of minimal scrutiny.64 The Court refused to treat classifi cations based on age as even semi-suspect, slough-ing them off to the most deferential version of minimal scrutiny.65 The Court bypassed several opportunities to rule that sexual orientation is suspect or quasi-suspect (although in the last instance the Court did strike down a law that discriminated against gay and lesbian persons).66

-The Court side-stepped one opportunity to hold that mental illness was

a suspect or quasi-suspect classifi cation,67 and later adamantly refused to recognize mental retardation as a suspect or quasi-suspect classifi cation (although striking down a zoning law that discriminated against persons who were mentally retarded).68 Brushing aside the dubious properties of these classifi cations, the Court has been unwilling to fi nd that any one of them is suspect or quasi-suspect

As noted above, the Supreme Court will apply strict scrutiny if lation contains a suspect classifi cation or if it impinges upon a funda-mental right The Court fi rst used the Equal Protection Clause to protect

legis-a fundlegis-amentlegis-al right in 1942 in the clegis-ase of Skinner v Okllegis-ahomlegis-a.69 In that case, the Court struck down a compulsory sterilization statute on the ground that it impinged upon the fundamental right of procreation In subsequent cases, the Court used the Equal Protection Clause to protect other fundamental rights: the right to vote,70 the right of equal access to the justice system,71 and the right of interstate migration.72 Beginning in the 1970s, however, the Court moved to curtail the recognition of further

63 See Griffi n v Illinois, 351 U.S 12 (1956); Harper v Virginia State Board of Elections, 383

U.S 663 (1966); San Antonio Independent School District v Rodriguez, 411 U.S 1 (1973).

64 See James v Valtierra, 402 U.S 137 (1971); San Antonio Independent School District v

Rodriguez, 411 U.S 1 (1973).

65 See Massachusetts Board of Retirement v Murgia, 427 U.S 307 (1976); Vance v Bradley,

440 U.S 93 (1979).

66 See Doe v Commonwealth’s Attorney, 425 U.S 901 (1976); Bowers v Hardwick, 478

U.S 186 (1986); Romer v Evans, 517 U.S 620 (1996).

67 See Schweiker v Wilson, 450 U.S 221 (1981).

68 See City of Cleburne v Cleburne Living Center, Inc., 473 U.S 432 (1985).

69 See Skinner v Oklahoma ex rel Williamson, 316 U.S 535 (1942).

70 See Harper v Virginia State Board of Elections, 383 U.S 663 (1966).

71 See Griffi n v Illinois, 351 U.S 12 (1956).

72 See Shapiro v Thompson, 394 U.S 618 (1969).

fundamental rights under the Equal Protection Clause Hence, the Court ruled that neither the right to an education,73 to housing,74 to employ-ment,75 to subsistence,76 or to physician-assisted suicide77 are fundamental These rulings, like the Court’s refusals to recognize new suspect or quasi-suspect classifi cations, are indicative of the Court’s resoluteness to contain the scope of heightened scrutiny.

As put into operation by the Supreme Court, the multi-tier system has proven to be unduly rigid.78 This rigidity was most pronounced during the days of the Warren Court before the emergence of intermedi-ate scrutiny or minimal scrutiny with bite At that time, a “sharp differ-ence” developed between the two extant tiers of review.79 Scrutiny that was supposed to be strict in theory turned out to be fatal in practice, while scrutiny that was supposed to be minimal in theory turned out to

be illusory in practice.80 As a result, the ultimate acceptance or rejection

of government action was determined by the level of scrutiny chosen in a given case In situations calling for minimal scrutiny, government action was almost automatically sustained; while in situations calling for strict scrutiny, it was almost automatically struck down Eventually, this state of affairs led to the formulation of an intermediate tier of review, which provided a degree of fl exibility to the overall structure.81 However, the presence of intermediate scrutiny did little to reduce the rigidity that remained within the other two tiers This was particularly acute in the lowest tier of review With minimal scrutiny functioning in reality as virtually no scrutiny, the Court had no other option but to uphold legis-lation that in truth was irrational While the creation of intermediate scrutiny was able to elevate some cases from the rigidity of the lowest tier, it did nothing to enhance the options available in those cases that

73 See San Antonio Independent School District v Rodriguez, 411 U.S 1 (1973).

74 See Lindsey v Normet, 405 U.S 56 (1972).

75 See Massachusetts Board of Retirement v Murgia, 427 U.S 307 (1976).

76 See Dandridge v Williams, 397 U.S 471 (1970); Jefferson v Hackney, 406 U.S 535

79 See Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court:

A Model for a New Equal Protection, 86 Harv L Rev 1, 12, 20 (1972).

80 Id at 8.

81 See Jeffrey M Shaman, Constitutional Interpretation: Illusion and Reality 103–4

(2001).

remained subject to the minimalism of rationality review Thus, the infl exibility within the minimal tier of scrutiny persisted Finally, this moved the Court in a few cases to invest minimal scrutiny with some bite.82 While this reduced the rigidity of rationality review in a few cases,

it also led to confusion in the law, because it is diffi cult to determine when the Court will evoke the upgraded variety of minimal scrutiny.83 Moreover, the enhanced form of minimal scrutiny is utilized only on rare occasion, which means that in a high majority of cases rationality review continues

to be nothing more than a pretext

As put into effect by the Supreme Court, the multi-level system also has been beset by internal inconsistency.84 There are legislative classifi ca-tions which appear to fi t the Court’s own defi nition of being suspect that the Court has declined to acknowledge as such Certainly, the Court’s refusal to recognize gender as a suspect classifi cation is questionable The Court’s failure to realize the suspicious aspects of classifi cations based on wealth or age is problematic, as is the Court’s treatment of classifi cations based on sexual orientation, mental illness, or mental retardation Brushing aside the dubious properties of these classifi cations, the Court has been unwilling to fi nd that any one of them is suspect or quasi-suspect Unwilling to abide by its own defi nition of a suspect classifi cation, the Court takes classifi cations which, according to the Court’s own logic, should be grouped together, and randomly scatters them among the various tiers of review

Internal inconsistency also affl icts the Supreme Court’s treatment of fundamental rights under the Equal Protection Clause.85 There is no logi-cal way to explain why, for example, the right to procreate or the right to vote in a state election (neither of which are mentioned in the Constitution) are considered fundamental, while the right to an education or the right

to employment are not The Court’s rulings in this area simply refl ect the fact that at some point a majority of the justices decided to put a freeze

on the recognition of fundamental rights under the Equal Protection Clause.86 Rights previously recognized as fundamental would continue

to enjoy that status, but henceforth precious few if any rights would be deemed fundamental

At this point in time, the federal model of equal protection, prised of three tiers of review, is relatively static.87 Minimal scrutiny, except

com-on those rare occasicom-ons when it is slightly amplifi ed, is nothing more than a pretext for deference to the legislature The heightened forms of review—strict and intermediate—are decidedly more meaningful, but apparently the scope of heightened scrutiny under the Federal Equal Protection Clause is frozen in its current posture

The State Conception of Equality

There is no denying that the federal model of equality still exerts a strong infl uence over state constitutional law In applying their own state equal-ity guarantees, some state supreme courts still follow the federal model of equality in virtual lockstep with the doctrine set forth by the United States Supreme Court Even those state supreme courts that have asserted some independence from the federal model of equal protection nevertheless borrow a good deal of federal doctrine concerning equal protection of the laws In construing their state equality provisions, these state supreme courts typically use a tiered approach similar, if not identical, to the fed-eral model In addition, these courts usually borrow the federal concepts

of suspect classifi cations and fundamental rights, although the state courts may apply these concepts differently than the United States Supreme Court applies them The fact is, though, that federal thinking about equality still dominates state constitutional law, although some states have made signifi cant changes to that thinking Indeed, some state supreme courts have afforded their state equality guarantees a wider scope than the Federal Equal Protection Clause in order to protect rights beyond those recognized in the federal arena

In interpreting equality provisions in their state constitutions, some state supreme courts continue to adhere strictly to the federal model.88

These states adamantly refuse to extend state equality provisions to any area beyond that protected by the Federal Equal Protection Clause Some states still cling to the federal model even if their state constitutional equality provisions are worded more strongly than the Federal Equal

87 Id at 237–47.

88 See, e.g., Kelly v State, 525 N.W.2d 409, 41 (Iowa 1994); Gora v City of Ferndale, 576

N.W.2d 141, 145 (Mich 1998).

Protection Clause In Michigan, for example, the state constitution not only provides that “No person shall be denied the equal protection of the laws,” it goes on to add that “nor shall any person be denied the enjoyment

of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin.”89 Despite the expansive language in the Michigan Constitution, the Supreme Court of that state has ruled that the Michigan guarantee of equality was intended

to duplicate the Federal Equal Protection Clause and offers no more protection than its federal counterpart.90

The lockstep approach of state conformity to the federal model of equal protection has the effect of rendering state equality guarantees superfl uous Where the Federal Equal Protection Clause already extends

to a particular area or protects a particular right, the application of a state equality provision to that area or right would be a mere redundancy, and all the more so given the dictate of the federal supremacy clause that makes federal law supreme to state law Hence, by conforming to the fed-eral model of equality, state supreme courts consign their own equality guarantees to obscurity

Since the rise of the New Judicial Federalism, however, more and more states have exercised their independence by breaking free of the federal model of equal protection Some state supreme courts have recog-nized that it makes little sense to conform to the federal model of equality when state equality provisions differ signifi cantly in language, purpose, and history from the Federal Equal Protection Clause The Supreme Court

of Vermont, for example, in asserting its independence from the federal approach, noted that the equality provision in the Vermont Constitution91

“differs markedly from the Federal Equal Protection Clause in its language, historical origins, purpose, and development.”92 Indeed, as the court explained, Vermont’s commitment to equality extends back to its days as

89 Mich Const art I, §2 (1963).

90 Doe v Department of Social Services, 487 N.W.2d 166 (Mich 1992) See also, North

Ottawa Community Hospital v Kieft, 578 N.W.2d 267, 272 n 11 (Mich 1998)(“Our state constitution provides equal protection guarantees similar to those contained in the United States Constitution.”); Crego v Coleman, 615 N.W.2d 218, 223 (Mich 2000) (“This Court has found Michigan’s Equal Protection provision coextensive with the Equal Protection Clause of the federal constitution”).

91 “(G)overnment is, or ought to be, instituted for the common benefi t, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community ” Vt Const ch I, art 7.

92 Baker v State, 744 A.2d 864, 870 (Vt 1999).

an independent republic and the state equality provision, which was part of the Vermont Constitution of 1777, predates the Federal Equal Protection Clause by nearly a century.93 This led the court to conclude that while the Federal Equal Protection Clause may supplement the pro-tection afforded by the Vermont equality provision, it “does not supplant

it as the fi rst and primary safeguard of the right and liberties of all Vermonters.”94

There is, then, a signifi cant trend toward state independence from the federal conception of equality In some instances, the move to inde-pendence is tentative; a state supreme court may proclaim that in inter-preting its own state equality guarantee it is under no obligation to follow federal equal protection doctrine, and then go ahead and do exactly that.95 In other states, though, the assertion of independence is more forceful At least twenty-one states have ruled that their state equality guarantees afford greater protection than the Federal Equal Protection Clause.96 Some states have retained the basic two or three-tier structure, but have increased the scope of one or another of the upper tiers by rec-ognizing various classifi cations or rights calling for heightened scrutiny that are not recognized as such in the federal system A number of states, for example, have upgraded gender classifi cations from intermediate to strict scrutiny.97 An Oregon court ruled that sexual orientation was a suspect classifi cation.98 Some state courts have ruled that education is a fundamental right that calls for strict scrutiny of school funding systems.99

Several states have departed from the federal model by enhancing rationality review under various circumstances In 1996 (a few years before abandoning the multi-tier system altogether), the Supreme Court

of Vermont gave some bite to rationality review in striking down a statute that denied adopted persons the right to inherit from collateral kin.100

That adopted persons historically have been a target of discrimination led the court to invest rationality review with an edge that it ordinarily

93 Id.

94 Id.

95 See, e.g., Collins v Day, 644 N.E.2d 72 (Ind 1994).

96 Randal S Jeffrey, supra note 17, at 254.

97 See Chapter Two.

98 Tanner v Oregon Health Sciences University, 971 P.2d 435 (Or Ct App 1998) Tanner

is more fully discussed in Chapter Six.

99 See Chapter Three.

100 MacCallum v Seymour, 686 A.2d 935 (Vt 1996).